Missouri, K. & T. Ry. Co. of Texas v. Barber

• Citation: 163 S.W. 116
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.
• Decision Date: 03 January 1914
• Court: Court of Appeals of Texas

163 S.W. 116

MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.

Court of Civil Appeals of Texas. Dallas.

January 3, 1914.

Rehearing Denied January 31, 1914.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

A. S. Coke and A. H. McKnight, both of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

RAINEY, C. J.

Appellee, while in the employ of appellant as a switchman, was, through the negligence of appellant's engineer, seriously injured, which caused him to contract tuberculosis, and by which he has been damaged, for which damage he sued the appellant. Appellant answered by plea of contributory negligence and assumed risk, and further that appellee and appellant were engaged in interstate commerce, and that appellee's cause of action arose under, and is governed by, Acts of Congress and Laws of the United States, and not of the state of Texas. A trial resulted in a verdict and judgment for appellee for $7,000, from which this appeal is taken.

The first, second, third, and fourth assignments of error complain of the court's charge on the question of contributory negligence.

The proposition submitted is that: "An issue not raised by the evidence should not be given in charge to the jury; and to give such an issue in charge is reversible error when such charge was calculated to confuse or mislead the jury to appellant's prejudice." Before the court read his charge to the jury he submitted it to the attorneys for inspection, the court's attention was called to the fact that it was agreed between the parties that one issue should be submitted to the jury. and that was whether or not the plaintiff gave the engineer a signal to come ahead, after having given a stop signal, or whether the last signal by plaintiff was a stop signal, and the engineer came ahead without a signal. The parties having agreed on the necessary issue to be submitted to the jury we think the court should have confined his charge to that issue, yet we are unable to see that any injury resulted to appellant by reason of the court charging on contributory negligence. If it could be said that there was no evidence raising the question of contributory negligence, the charge was favorable to appellant in that it permitted the jury to find, on that issue, which, if found in the affirmative, would have lessened the damages to which appellee was entitled.

The evidence shows that appellee was employed as switchman for appellant, and while in the performance of that duty it was necessary in making up a train to couple some cars; that he signaled the engineer operating the engine to shove the cars together that they be coupled, and as he did so appellee stepped in between the cars to make the coupling, which failed. Appellee, seeing the knuckle needed adjusting, gave the engineer the stop signal, and then stepped in between the cars, and the engineer, having disregarded the stop signal, drove the cars together and mashed appellee in the left breast, which injured him and eventually produced tuberculosis.

There was testimony which, in the absence of the agreement as to the issue that was to be submitted, called for a charge on contributory negligence. In connection with appellant's ideas of the agreement as to the issue to be submitted the following charge was asked and refused by the court, to wit: "If you find that at the time, or immediately before, he was injured plaintiff did not give said engineer a signal to come ahead, and that said engineer moved said engine and cars without signal so to do, you will find for plaintiff; on the other hand, if you find that plaintiff did give said engineer a signal to move said engine and cars, and that said engineer moved same in obedience to such signal, you will find for the defendant." The theory embraced in this special charge was covered by the main charge, and there was no error in refusing to give said charge. Under the circumstances as developed the foregoing assignments are overruled.

2. Appellant's fifth assignment complains as follows: "The court erred in giving to the jury the following portion of paragraph No. 6, of its general charge: `An employé of a railway company is held, in law, to assume such risks as are ordinarily incident to the service he is employed to perform, but a risk which arises from the negligence of the railway company is not such risk as is ordinarily incident to the service, and is not such a risk as is assumed by the employé, unless the negligence, and the risk arising therefrom, be known to him, or would be known to him in the exercise of ordinary care, in the discharge of the duties of his employment, and where the risk is known to the employed, or would be known to him by the exercise of ordinary care, the risk is not assumed by him, and is not available as a defense where a person of ordinary care would have continued in the service, with the knowledge of the defect and danger; and so plaintiff in this case, when he entered the service of the defendant as switchman, assumed all the risks or danger ordinarily incident to such employment, as the law relating to the assumption of such risks is above explained, but he did not assume any risk or danger arising from any negligence of the defendant.'" The first proposition submitted is: "The issue of assumed risk was not raised by the evidence, and the court should not have given a charge thereon, and the giving of any charge thereon, and particularly the giving of the charge as given by the court, was calculated to mislead and confuse the jury and was prejudicial to the defendant." We think the evidence warranted giving the charge of assumed risk. If it was not warranted, the charge being one of defense, it was not calculated to injuriously influence the jury against the defendant, and it was harmless.

Under appellant's second proposition relating to the knowledge...